Even while cannabis use and sale is legal and regulated in several U.S. states, those employed at legal and licensed Canadian cannabis companies could face denial of entry and lifetime bans from the U.S. if they tell a border official where they work, say immigration lawyers.
Although nine U.S. states have legalized cannabis for recreational use for adults over the age of 21 and medical marijuana is legal in another 30 states, the drug is still illegal under U.S. federal law. The U.S.’s Immigration and Nationality Act says that anyone who has violated a federal or state regulation or law relating to a controlled substance is inadmissible to enter the country. Those who have cannabis or are involved in the production and sale of cannabis are legally not allowed to enter the United States. Conviction for a marijuana-related crime is not necessary for a person to be inadmissible to travel to the U.S.
With U.S. federal law still outlawing cannabis and Canada soon to legalize, there is not a “level playing field” at the border anymore, says Evan Green, senior partner at Green and Spiegel LLP in Toronto. A person employed at a licensed cannabis company in Canada is, to the United States government, living off of the proceeds of crime, he says.
“Bottom line is people who derive their living exclusively in the cannabis industry can expect that they may have trouble,” says Green, who manages his firm’s U.S. immigration practice. “They can expect that they may have problems entering the United States.”
For those deemed inadmissible, there is the possibility of obtaining a waiver in order to be allowed entry to the U.S. Travellers with criminal records can apply and be granted a waiver so they can enter the U.S.
But Green says that for someone who is ruled inadmissible to enter the U.S., getting a waiver will not be a quick fix to the problem. The waiver application must go through an adjudication, which will take four to six months, says Green. And if an employee of a cannabis company is deemed inadmissible, they will not be given a waiver if they are still working for the cannabis company.
“If you're still working in the cannabis industry and that's the reason you've been not allowed to enter the United States, it's not like, ‘OK, now I'm going to apply for this permit and I'm going to get it.’ If the thing that's causing concern is still in play, you're not going to get in,” he says.
It has always been the case that U.S. border officials sometimes ask a Canadian traveller if they have used marijuana or other banned substances, with affirmative answers earning bans, says Green.
If a border agent simply has a reason to believe that a Canadian is involved in cannabis trafficking, that is enough for that person to be inadmissible, according to Carolyn Frost and Reis Pagtakhan, writing for MLT Aikins LLP’s Insights.
Evans says border officials will typically ask five questions: Where do you live? What do you do? Where are you going? How long are you staying? And what is the purpose of your visit?
When a Canadian enters the U.S., according to U.S. law, the burden of proof is on the traveller to prove that they are entering the U.S. for a valid reason, says Green. While it is illegal to use cannabis in the U.S., so is presenting fraudulent documents or misrepresentation, which includes lying to a border official.
“Never, never, never, ever lie to U.S. immigration,” he says.
While a person who works for a cannabis company should not volunteer that information, if asked they are going to have to provide some kind of answer to satisfy the official, says Green.
Leonard Saunders is a U.S. immigration lawyer who founded The Immigration Law Firm in Blaine, Wash. He told Business In Vancouver that when asked about cannabis, if involved in the industry, the best thing to do is say nothing.
Saunders says he knows of at least 12 recent cases of cannabis executives receiving lifetime bans.
Once legalized, cannabis will be sold in government-run LCBOs in Ontario. Trina Fraser, co-managing partner at Brazeau Seller LLP, says U.S. border officials may place LCBO cashiers in the same category as cannabis industry executives.
“There really isn't any distinction in my mind between working for a licensed producer who's growing cannabis and working for a licensed retailer who's selling cannabis,” says Fraser, who is legal counsel for the Cannabis Canada Council, the industry’s trade association.
Fraser says she spoke to Homeland Security officials about whether someone like her, who represents clients in the cannabis industry, would have trouble travelling to the U.S. for a cannabis-industry conference and was told that in their opinion that would be an “illegal purpose for entry” for which she could be denied entry.
Denial of entry for those connected to cannabis companies “is the exception not the norm,” says Fraser. The problem is there is no clarity and so much discretion that people like her are subject to the whims of a random border agent.
“It just seems to be so willy-nilly and so haphazard,” she says. “If they happen to be in a really bad mood and have a bee in their bonnet, that could lead to questions being asked that you're not able to answer in a satisfactory way. That could lead to your denial and in you're being banned.”
On June 21, Bill C-45, which legalized cannabis, received royal assent. Bringing cannabis across the border into Canada will remain illegal once the law takes effect, however, even if arriving from a jurisdiction where cannabis is legal and if it is for medicinal purposes, according to the Government of Canada.